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Orphaned Child X Finds New Home and Parents in Trusted Maternal Care of Aunt and Uncle

Dodson [2022] FedCFamC1F 1043 (29 November 2022)

Both of the child’s parents have passed away.  Parental responsibility is required on an urgent basis.  As such, the Court made final orders for the parental responsibility sought by the applicants.

Facts:

X was born in 2017.  X’s mother, Ms B, passed away tragically in early 2022.  X’s father, Mr C, passed away in mid-2022.  Under the mother’s testamentary will, the applicants were appointed as the child’s testamentary guardians.  The father consented to the arrangement that X live between the maternal aunt and maternal grandparents’ home.

Before that arrangement was formalised or, more particularly the father’s consent documented, the father was admitted into the D Hospital in early 2022. In March 2022, X started living with the applicants on a full-time basis.  In early 2022, the father was admitted to ICU and placed on life support.  Due to this, the applicants wrote to Services Australia on 4 April 2022 to request the child be included on their Medicare card so they could provide for X the medical care that he may need.  The father then passed away in mid-2022.

The first applicant in these proceedings is Ms Dodson, the maternal aunt, and her husband is the second applicant, Mr Dodson.  Both parties propose formal arrangements that sees them having parental responsibility and, obviously, for X to live with them, as has been occurring.  The matter was referred by the applicants, and perhaps more so their solicitors, to the National Assessment Team for consideration to be included in the Critical Incident List on 21 October of this year.  That referral was accepted and the applicants’ material and Initiating Application was filed on 25 October 2022. The first return of the matter came before me on 28 October 2022.

The Court invited the Department of Community Justice (“the Department”) to attend, but they were unable to arrange a representative to attend in Court on that day.  They, however, helpfully provided a personal history report.  The Department of Community Justice had not undertaken any field assessments with respect to X, nor did they have an open case in relation to X.  There had been a total of five historical reports received by the department in relation to X, most of which was in 2020.

The Department did not hold a birth certificate for X.  They were not aware of any other person who may require to be served.  At the time of their last report in 2020, X was known to be living with his mother.  Most importantly for present purposes, the Department of Community Justice did not hold any information regarding the applicants, Ms Dodson and Mr Dodson, causing harm to any child or young person. 

Issue:

The issue is that X's parents have passed away and the applicants, Ms Dodson and Mr Dodson, have been caring for X since March 2022, and the matter was referred to the National Assessment Team for consideration. The Department of Community Justice does not have any information of the applicants causing harm to any child or young person. As such, the Court resolves the question of whether or not they should be X's legal guardians and have parental responsibility.

Applicable law:

Australian Passports Act 2005 s 11(b) - provides that an order of a court of the Commonwealth, a State or a Territory permits: (i)  the child to have an Australian Travel document; or (ii)  the child to travel internationally; or (iii)  the child to live or spend time with another person who is outside Australia.

Family Law Act 1975 (Cth) ss 60CC - provides that the Court, in making parenting orders, should take into consideration the children's best interests.

Analysis:

The applicants keep X’s paternal family involved in his life and aware of what he is doing.  This matter was received into the Critical Incident List.  It was a Critical Incident List on its first return and remains so.  A cornerstone of the Critical Incident List is demonstrated urgency.

The applicants’ needed formal authorities to be able to deal, in particular, with education authorities.  The child currently attends preschool five days a week, but will start kindergarten next year.  The applicants have a child, H, who is currently seven years of age and is an obvious form of comfort and sibship for X.  The applicants, understandably, wished the children to go to the same school.  That made sense logistically and it also makes sense for the sibship, as far as possible, to be together.

Conclusion:

The child, X, born in 2017, will live with Ms Dodson and Mr Dodson, and they will have parental responsibility for all major long-term decisions related to the child, including education, religious and cultural upbringing, health, obtaining a Medicare card and claiming benefits, dealing with government agencies, and requesting a copy of the child's birth certificate. The Dodson's will have responsibility for day-to-day decisions, the paternal family will spend time with the child as agreed, and the Dodson's are granted permission to share this order with service providers for the child. They also have authority to schedule and consent to treatment and therapy for the child, and to apply for an Australian travel document for the child.

Case: Dodson [2022] FedCFamC1F 1043 (29 November 2022) 

Judgment of: BRASCH J

Solicitor for the Applicants: Rossi Simicic Lawyers

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